[Vision2020] California Gays Seek Marriage Rights under the U.S. Constitution

nickgier at roadrunner.com nickgier at roadrunner.com
Fri Feb 5 14:15:17 PST 2010


Greetings Visionaries:

This is my radio commentary/column for this week. I have a very good feeling that we are going to win this one. The full version is attached as a PDF file.

Read all of my columns on civil rights at www.home.roadrunner.com/~nickgier/CivilRights.htm

I've just finished Greg Mortenson's "Stones into Schools."  His "Three Cups of Tea" was great, but this one brought tears to my eyes several times.  I've chosen the book for next week's topic.

Nick Gier

CALIFORNIA GAYS SEEK MARRIAGE RIGHTS UNDER U.S. CONSTITUTION

Seven state courts have ruled that denying the right to marry for gays and lesbians violates their constitutions.  Writing for the majority in the Massachusetts Supreme Court, Chief Justice Margaret Marshall, a GOP appointee, stated that her state’s Constitution "forbids the creation of second class citizens," and "the right to marry means little if it does not include the right to marry and the person of one's choice."

A trial in San Francisco will now decide whether this denial violates the equal protection clause of the 14th Amendment of the U.S. Constitution. It is worth stating this clause in full: "No state shall deprive any person of life, liberty or property, without due process of law; nor deny to any person the equal protection of the laws."

Referenda or legislation in 31 states have denied marriage rights to gays and lesbians, and let’s hope that the Judge Vaughn Walker, appointed by President Bush the Elder, decides that majority rule cannot mean that any minority's rights--be they of a different race, religion, or sexual orientation--can be trampled.  

The most interesting aspect of the San Francisco trial is that Ted Olson, former Solicitor General for George W. Bush, is representing the two gay couples who have challenged the constitutionality of California's Proposition 8, the ballot measure that has now made same sex marriage illegal in that state.

In a column in Newsweek (Jan. 18) Olson waxes eloquent in his defense of gay marriage: “Same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership.”

Charles Cooper, the attorney defending Proposition 8, has trotted all the same old reasons that have been refuted time and time again.  Cooper argues that we should respect the tradition that only a man and woman can marry, but Olson countered that "simply because something has always been done a certain way does not mean that it must always remain that way."

Opponents also allege that gays and lesbians perform "unnatural" sex acts and therefore their rights should be restricted.  Heterosexual couples, however, indulge in far more unnatural sex acts than their homosexual compatriots, but no one would propose taking their marriage licenses away.  

When two Texas men were caught by police having sex in their bedroom, they were fined $200 each under that state’s sodomy laws. In 2003 the men appealed to the Supreme Court, where in Lawrence v. Texas, the justices ruled 6-3 in their favor.  

Writing for the minority and assuming that he could deny gays and lesbians rights because their acts are "immoral and unacceptable," Justice Antonin Scalia conceded that if the majority prevailed there would no longer be any legal obstacle to same-sex marriage.

Olson is making mince meat of Cooper's invalid argument that gays and lesbians cannot marry because they cannot produce children. As Olson states: "This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry."  Olson is proud of the fact that the lesbian couple that he represents is raising four children.

Everyone agrees that this case will go all the way to the Supreme Court.  Let's hope that Scalia honors the legal precedent of Lawrence v. Texas, which prevents him arguing that gays and lesbians cannot marry because they engage in illegal activity. 

Celebrating the end of Texas' sodomy law, Ellen Goodman said: "The statutes that made homosexuals outlaws had to end before they could become in-laws." But wait a minute: even heterosexual criminals in prison are allowed to marry the heterosexual of their choice!

Nick Gier taught philosophy at the University of Idaho for 31 years. 
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